QUEENSBURY -- It's not often a defendant in a criminal case asks a judge to reinstate the criminal charge, and the prosecutor opposes the request.
But that's the latest twist in the case of local restaurateur Michael Willig, who is seeking the return of a motorcycle he says was illegally seized from him a year ago.
Willig and his lawyer, Kurt Mausert, argued to state Supreme Court Justice David Krogmann on Tuesday that the state Department of Motor Vehicles continues to break state law by not returning the vehicle.
Queensbury Town Justice Michael Muller, who dismissed a felony charge that had been filed against Willig in connection with an obscured vehicle identification number on the motorcycle, directed that the bike be returned in May.
But the DMV filed a lawsuit in Supreme Court seeking to have Muller's ruling overturned.
Krogmann heard arguments in that lawsuit on Tuesday and reserved decision.
Assistant Attorney General Matthew Silverman, who represents the DMV, argued that Muller did not have jurisdiction to order the motorcycle returned and cannot legally order it returned to Willig. A town justice's order is typically only in effect in contiguous counties, and the Albany County-based DMV is not contiguous to Warren County, he said.
That position was attacked by Mausert and lawyer Brian Reichenbach, who represents Muller.
They pointed out that the DMV began the case by arresting Willig and filing the charge.
"Once DMV initiated the action in Queensbury Town Court, they were bound to this jurisdiction," Reichenbach said. "Their obligation was to obey the court order."
Mausert called the actions by the DMV and the state Attorney General's office "nefarious," and accused the state agencies of misrepresenting the law and prior cases on the issue. The law requires evidence in a criminal case, in this case a motorcycle, to be returned when the case is resolved, he said.
The DMV has just refused to do so, without any legal right to refuse, Mausert said.
"This is the height of bureaucratic arrogance," Mausert said.
Muller dismissed the criminal charge in the "interests of justice," without opposition from the Warren County District Attorney's Office in May.
After the DMV refused to return the motorcycle, Mausert filed a motion to reinstate the charge because, to sue the state, his client would need a dismissal on the merits of the case.
The Warren County District Attorney's Office is opposing that motion, Krogmann noted in court.